Constitution Check: Will the court repudiate decisions from the World War II era?

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Lyle Denniston looks at the possibility of the Supreme Court repudiating one of its most controversial decisions: the World War II decision on Japanese-American internment camps.

The statements at issue:

“Peter Irons, founder of the Earl Warren Bill of Rights Project at the University of California at San Diego, is campaigning for Supreme Court ‘repudiation’ of the Korematsu v. U.S. decision and other Japanese internment rulings. Such repudiation, it if occurred, would be unprecedented. An essay Irons is circulating among constitutional law professors whose support he seeks is timely reading.”

– George F. Will, syndicated columnist, in an op-ed story in The Washington Post on April 25,”When fear trampled citizenship.”

“A public statement by the court of the repudiation of the internment cases … would fall within the court’s inherent power to ‘correct its records’ in these cases. The fact that the court has never before issued such a ‘repudiation’ statement is no bar to the authority of the justices to take such an action.”

– Peter Irons, in the essay cited by George Will. The essay is titled “Unfinished Business: The Case for Supreme Court Repudiation of the Japanese American Internment Cases,” available at this website.

We checked the Constitution, and…

However wrong-headed, or even worse, a decision by the Supreme Court might be, either when issued or when assessed in later years, the Constitution simply does not give the justices the authority to issue public statements condemning such a past ruling. That is a political act, and it would be a direct contradiction of the limits of Article III for the court to indulge in such a public statement.

That is not to say that the court cannot show its profound disagreement with a prior ruling that it has made, but there is a way to do that without the court becoming a public critic of its own precedents. The way is to overrule an offending precedent when the occasion arises for such a decision to be tested anew.

Note that phrase: “when the occasion arises.” That, constitutionally speaking, is limited to an opportunity for the court to rule on a new case that actually involves what the court often calls a “live case or controversy” and the past ruling is claimed by one side or the other to affect or control the outcome.

The court itself has understood since its very early years that its function is to decide actual lawsuits, in which there are at least two sides in conflict and in which the legal adversaries have something real at stake. That is a tradition that the court itself established in 1793.

President George Washington, through his secretary of state, Thomas Jefferson, asked the court to provide legal advice to the president on how to interpret treaties with Britain and France about American obligations toward them during the French Revolution, when the United States was seeking to remain neutral. Politely and with an apology, the court declined to offer any advice, saying that to do so would violate the separation of powers that the Constitution requires among the three branches of the national government.

About Constitution Check

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Separation of powers of the government, a concept traced to the French philosopher Baron de Montesquieu and embraced fervently by James Madison in the Founding era, was considered to be absolutely vital to prevent one branch of the government from becoming despotic. Each branch is to act as a check upon each other in order to preserve liberty, the concept holds.

Because each of the branches of the national government has grown so powerful, it may be quite easy to assume that they have very wide discretion about how they use their own grant of power. And it is perhaps easy to forget that a basic principle the Founders applied devotedly was that they were creating three branches with limited, not open-ended, authority.

Why shouldn’t the Supreme Court be allowed simply to put out what would amount to a press release, repudiating its World War II–era decisions upholding the government’s power to put citizens into detention camps out of fear that they would be disloyal during wartime? The answer is simply that a press release does not decide a lawsuit, and that is all that the court can do.

In the brief quotation above from Peter Irons’ essay, he suggested that the court had “inherent power” to “correct its records.” But the principle of separation of powers simply does not allow for unspecified and ungranted “inherent” authority by any of the branches of the federal government. “The Judicial Power of the United States”—the words that open Article III—do not confer on the Supreme Court or lower federal courts the authority to issue advisory opinions, outside of the four corners of a lawsuit.

Last year, the Justice Department learned that it had made a significant mistake in defending one of the arguments that it had used to help it win a case about immigration and deportation laws. That is precisely what happened in the World War II Japanese internment cases; indeed, the government lawyers in those cases explicitly withheld information that contradicted what they had told the court; that information only came out later.

In the incident last year, the Justice Department admitted its mistake to the court. But the court did nothing at all in response. It simply accepted the admission, and let its prior ruling stand. If a new case raising the same issue were to reach the court again, the justices might well cast aside their precedent, and cite the government mistake as its reason. But, again, that could come only in reaction to a specific case.

The constitutional reality is that the World War II Japanese-American precedents have been condemned in the only way that the federal courts can do: in the context of an actual legal proceeding. Many years after those cases were decided, two of the individuals who had been imprisoned and found guilty of violating the exclusion rules—Fred Korematsu and Gordon Hirabayashi—were allowed to challenge their convictions using a little-used but perfectly legal method, and their convictions were overturned.

Had those cases gone to the Supreme Court (they did not, because the government at the time did not appeal), that would have given the court a chance to overrule its precedents. It is not likely to have another chance like that.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.